Opinion
7 Div. 554.
April 9, 1929. Rehearing Denied May 14, 1929.
Appeal from Circuit Court, Calhoun County; W. B. Merrill, Judge.
Action on account by J. G. Hanks against C. R. Everett, doing business as the Acme Stores Company. Judgment for defendant, and plaintiff appeals. Affirmed.
Certiorari denied by Supreme Court in Hanks v. Everett, 219 Ala. 494, 122 So. 701.
Rutherford Lapsley, of Anniston, for appellant.
There is no presumption in favor of the trial court's ruling on motion, when there is no conflict in the evidence or when the issue is upon the legal effect of defendant's written admission of liability; and the court will consider the probability of prejudice or passion influencing the verdict, and reverse the trial court when the verdict is palpably wrong and unjust. Matthews Morrow v. Batson, 218 Ala. 378, 118 So. 749; Twinn Tree Lumber Co. v. Day, 181 Ala. 565, 61 So. 914; Cudd v. Bentley, 204 Ala. 586, 87 So. 85.
Willett Willett, of Anniston, for appellee.
Brief of counsel did not reach the Reporter.
This is a suit on account, or on account for work and labor done by plaintiff at defendant's request, and was instituted by appellant against appellee. The complaint filed was accompanied by a verified, itemized statement of the account sued on, as provided by section 7666 of the Code of 1923. The defendant (appellee), likewise in accordance with section 7666 of the Code of 1923, filed an affidavit denying the correctness of the account sued on.
In effect, the only question presented for our consideration is that of the propriety vel non of the trial court's action in overruling appellant's motion to set aside the verdict of the jury which had been rendered in favor of appellee, and also the judgment rendered thereon, and to grant appellant a new trial.
True, in appellee's sworn denial, supra, there does appear an admission of the correctness of one item, as set forth in appellant's sworn account, which would seem to be due appellant, free of offsets. But appellee, testifying at the trial as a witness in his own behalf, denied owing appellant any amount. So the issue of his indebtedness vel non to appellant was properly submitted to the jury for their solution. Their verdict being in favor of appellee, and the trial court, who saw and heard the witnesses, refusing to disturb their finding, we would not and do not feel authorized to overturn his action. Cobb v. Malone Collins, 92 Ala. 630, 9 So. 738.
The judgment is affirmed.
Affirmed.